Ex Parte Tran

Patent Trial and Appeal Board

Aug 7, 2013

11767874 (P.T.A.B. Aug. 7, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/767,874 06/25/2007 Trong Tran 1807.1 2097
52207 7590 08/07/2013
LAW OFFICES OF LARRY K. ROBERTS, INC.
2603 Main Street
9th Floor
Irvine, CA 92614-6232
EXAMINER
PAIK, SANG YEOP
ART UNIT PAPER NUMBER
3742
MAIL DATE DELIVERY MODE
08/07/2013 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte TRONG TRAN
____________

Appeal 2011-008045
Application 11/767,874
Technology Center 3700
____________

Before JAMES P. CALVE, SCOTT A. DANIELS, and
JEREMY M. PLENZLER, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the rejection of
claims 62-64, 73, and 74. App. Br. 4. Claims 1-61, 65-68, and 75-77 are
cancelled. Id. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
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Application 11/767,874

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CLAIMED SUBJECT MATTER
Claims 62 and 73 are independent. Claim 62 is reproduced below:
62. A method of manufacturing a spa heater controller
assembly configurable for use in a plurality of different spa
products or lines, each with different maximum current and
power specifications, comprising:
providing a single spa heater with a maximum heater
current rating;
providing a controller arranged to modulate the current
drawn by the single heater in a spa installation to maintain a
total spa system current at or below a maximum system current
limit, wherein the maximum system current limit is
preprogrammed into the controller for any of a range of current
limits corresponding to a selected one of the plurality of
different spa products or lines;
wherein the single heater and the controller are
configured for use in a plurality of different spa products or
lines, each with different maximum current and power
specifications.

REJECTION
Claims 62-64, 73, and 74 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Collins (US 6,875,961 B1; iss. Apr. 5, 2005) or
Cline (US 6,590,188 B2; iss. Jul. 8, 2003) in view of Brochu (US 7,112,768
B2; iss. Sep. 26, 2006), Azizeh (US 6,670,584 B1; iss. Dec. 30, 2003), and
Ikura (US 4,915,162; iss. Apr. 10, 1990).
ANALYSIS
The Examiner found that Collins or Cline discloses a method and spa
system as claimed, except for maintaining the total spa system at or below a
maximum system current level. Ans. 3-4. The Examiner found that Brochu
discloses a spa system with a single heater and control system that activates
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Application 11/767,874

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the heater at a reduced current when less than maximum current is available
due to current being drawn by other electrical system components. Ans. 4.
The Examiner found that Azizeh discloses a spa system with a heater and
other components and a control system that determines the current drawn by
non-heater components of the spa, and calculates the available current for
the heater. Thus, the Examiner found Azizeh suggests a maximum current
limit available to the spa is predetermined and pre-programmed. Ans. 4-5.
Appellant separately argues each of claims 62-64, 73, and 74. We
address each of these arguments in turn.
Claim 62
Appellant argues that Collins, Cline, and Brochu describe a single
heater spa system but do not address the problem noted in paragraph [0003]
of Appellant’s Specification that manufacturers maintain an inventory of
heaters with different specifications and construct spa systems with different
current requirements for different heaters. App. Br. 13. This argument is
not persuasive as the Examiner’s reason for combining references need not
be the same as Appellant’s, and this argument is not commensurate with the
scope of claim 62. Alcon Research, Ltd. v. Apotex Inc., 687 F.3d 1362, 1368
(Fed. Cir. 2012) (“We have repeatedly held that the motivation to modify a
prior art reference to arrive at the claimed invention need not be the same
motivation that the patentee had.”) (citing KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 420 (2007) that it is error to look “only to the problem the patentee
was trying to solve”).
Appellant also argues that these references do not disclose a controller
as in claim 62 or a single heater and controller configured for use in different
spa products each with different current and power specifications. App. Br.
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13. This argument does not persuade us of error in the Examiner’s findings
that Collins, Cline, and Brochu disclose a single heater and controller for
controlling the heater and electrical components in a plurality of different
spa products. Ans. 3-4, 6. For example, Collins discloses that the invention
has application to electrical equipment associated with the operation of pools
and spas. Col. 1, ll. 6-10. Cline’s invention relates to control systems for
bathing systems such as portable spas. Col. 1, ll. 17-18. Brochu discloses a
control system for controlling operational settings in spas, whirlpools, hot
tubs, bath tubs, swimming pools, and other types of bathing receptacles, and
for heating elements. Col. 4, ll. 46-54; col. 5, ll. 54 to col. 6, l. 15; figs. 1, 2.
Appellant also argues that Azizeh discloses using two spa heaters,
each apparently operated at its maximum current rating when activated, and
thus the Examiner’s determination that it would have been obvious to
provide a range of maximum current limits that a user could program into a
microprocessor to increase operational flexibility and accommodate a wide
range of different electrical power sources and spa products is unsupported,
speculative, and the product of improper hindsight reconstruction. App. Br.
13-14. This argument is not persuasive as the Examiner relied on Azizeh to
disclose a control system that determines the maximum current drawn by
non-heater components and the available current capacity (residual current)
for a heater. Ans. 4. This argument also does not apprise us of error in the
Examiner’s findings and reasoning that the spa components such as motors,
blowers, and pumps are different spa products and inherently have their own
power specifications, or that the applied prior art teaches that the maximum
current drawn to the spa is determined by spa components, and that it would
have been obvious to set or pre-program the maximum current limit on a
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controller based on the selected different spa products for a particular spa.
Ans. 6; Azizeh, col. 2, ll. 44-55. Appellant has not identified a definition of
“maximum system current limit” or anything in the Specification that is
inconsistent with this finding. Appellant’s arguments amount to general
allegations that Azizeh does not teach features relied on by the Examiner
and that the Examiner’s explanation for the conclusion of obviousness is
lacking in some unspecified way. These general allegations do not apprise
us of Examiner error and we sustain the rejection of claim 62.
Claim 63
Claim 63 depends from claim 62 and recites “pre-programming the
controller with the maximum system current limit for the selected one of the
plurality of different spa products or lines.” Appellant argues that Azizeh
pre-programs the micro-processor with how much current is available to the
spa but this need not be the same as the maximum system current limit for
the selected spa product or line, which may be less than the current that is
available to the spa system. App. Br. 14. This argument is not persuasive as
Azizeh also discloses programming a micro-processor with data as to which
devices are connected to the spa and how much current each device requires.
Col. 2, ll. 38-51. The micro-processor determines which devices are active
and calculates the residual amps available for heating by subtracting the
consumed amps of the active devices from the preprogrammed system amps.
Col. 3, ll. 1-22; see Ans. 4. Appellant has not apprised us of error in these
findings. We sustain the rejection of claim 63.
Claim 64
Claim 64 depends from claim 62 and recites “the controller modulates
the current drawn by preventing current from flowing through the heater
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during at least a portion of each of a plurality of successive cycles of an AC
line voltage.” Appellant’s argument that this feature is not taught by Azizeh
is not persuasive as the Examiner relies on Ikura for this feature. See Ans. 5.
We sustain the rejection of claim 64.
Claim 73
Appellant repeats arguments, in part, that were made for claim 62
noting that Brochu describes a heater control that reduces energy generated
by the heater when the water temperature reaches a desired temperature and
Azizeh teaches the use of two heaters. App. Br. 15-16. These arguments are
not persuasive for the reasons discussed supra for claim 62. We sustain the
rejection of claim 73.
Claim 74
Appellant’s argument that Azizeh does not modulate the current
drawn by preventing current from flowing through the heater during at least
a portion of each of a plurality of successive cycles of an AC line voltage
applied to the heater as recited in claim 74 is not persuasive as the Examiner
relied on Ikura for this feature. We sustain the rejection of claim 74.
DECISION
We AFFIRM the rejection of claims 62-64, 73, and 74.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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